|
Table of contents back to top
I.
Article 1 back to top
A. Text of
Article 1
B. Interpretation and Application
of Article 1
1. Article 1.1
(a) “covered
agreements”
2. Article 1.2
(a) “special
or additional rules and procedures”
(i) General
(ii) Article
17 of the Anti-Dumping Agreement
(iii) Article
4.7 of the SCM Agreement
II.
Article 2 back to top
A. Text of
Article 2
B. Interpretation and Application
of Article 2
1. General
2. Rules of
procedures for the DSB
3. Date of
circulation
4. Communications
with the DSB
5. Time-periods
6. Rules of
conduct
7. Negotiations
on the amendment of the DSU
III.
Article 3 back to top
A. Text of
Article 3
B. Interpretation and Application
of Article 3
1. Article 3.2
(a) “security
and predictability”
(b) “clarify
the existing provisions”
(c) “customary
rules of interpretation of public international law”
(i) Article 31
of the Vienna Convention: General rule of interpretation
(ii) Article
31(3)(b) of the Vienna Convention: Subsequent practice
(iii) Article
32 of the Vienna Convention: Supplementary means of interpretation
(iv) Good
faith
(v) Principle
of effective treaty interpretation
(vi) Article
33 of the Vienna Convention: Plurilingual treaties
(vii) Presumption
against conflict
(viii) Non-retroactivity
of treaties
(ix) State
responsibility
(x) Legitimate
expectations
(xi) Status
of adopted GATT/WTO Panel and Appellate Body Reports
(d) “add
to or diminish the rights and obligations”
(e) Relationship
with other Agreements
(i) Anti-Dumping
Agreement
2. Article 3.3
(a) “measures
taken by another Member”
3. Article 3.7
4. Article 3.8
(a) Presumption
of “nullification or impairment”
(b) Relationship
with other Agreements
(i) Article
XXIII:1 of GATS
5. Article 3.10
(a) “good
faith … effort to resolve the dispute”
IV.
Article 4 back to top
A. Text of
Article 4
B. Interpretation and Application
of Article 4
1. General
(a) Importance of consultations
(b) Disclosure of information during consultations
(c) Adequacy of consultations
(d) Result of the consultations
(e) Challenging a request for consultations
2. Article 4.4
(a) Notification of requests for consultations
(b) Absence or addition of
“claims”
and/or “measures” in the request for consultations
(c) Effect of the extension of the duration of
identified measures after consultations
(d) Relationship between request for consultations
and request for the establishment of a panel
3. Article 4.6
(a) “consultations shall be
confidential”
(i) Information acquired during consultations
(ii) Relevance of third party participation in
confidentiality of information from consultations
(b) “consultations shall be … without
prejudice to the rights of any Member ”
4. Article 4.9
5. Article 4.11
C. Relationship with other Articles of the DSU
1. Article 6 of the DSU
D. Relationship with other WTO Agreements
1. Article 8.10 of the ATC
2. Article 17 of the Anti-Dumping Agreement
3. Article 4.2 of the SCM Agreement
V.
Article 5 back to top
A. Text of
Article 5
B. Interpretation and Application
of Article 5
1. WTO
Director-General’s offer of assistance
2. Mediation
outside the DSU
VI.
Article 6 back to top
A. Text of
Article 6
B. Interpretation and Application
of Article 6
1. General
(a) Multiple panels involving the same parties and
same claims
2. Article 6.2
(a) General
(i) Task of panels to examine requests for
establishment
(ii) Request must be sufficiently precise
(b) Right to bring claims
(i) Legal interest
(ii) Right to bring claims under Article 17.4 of
the Anti-Dumping Agreement.
3. Basic requirements for bringing a claim under
Article 6.2
(a) “indicate whether consultations were
held”
(b) “identify the specific measure at
issue”
(i) Standard for sufficient
“identification”
(ii) Government legislation per se as a
“measure”
(iii) Scope of the term
“measure”
(iv) Distinction to be drawn between laws and the
specific application of laws when assessing measures
(c) “a brief summary of the legal basis of
the complaint … sufficient to present the problem clearly”
(i) Identification of the claims
(ii) Distinction between claims and arguments
(iii) Importance of timing of specificity
objection
(iv) Distinction between sufficiency of a panel
request and establishing a prima facie case of violation
(d) Relevance of the principle of good faith
C. Relationship with other Articles of the DSU
1. Article 4 of the DSU
2. Articles 6.2 and 21.5 of the DSU
D. Relationship with other Agreements
1. Relationship between Article 6.2 of the DSU and
Article 17 of the Anti-Dumping Agreement
(a) The term
“matter” under paragraphs 4
and 5 of Article 17
(b) Anti-dumping measures
(c) Legal basis for claims under Article 17
VII.
Article 7 back to top
A. Text of
Article 7
B. Interpretation and Application
of Article 7
1. General
2. Article 7.1
(a) “the
matter referred to the DSB”
(i) Concept of
“matter”
(ii) Specific
measures at issue
(iii) Claims
3. Article 7.2
4. Article 7.3
(a) Special
terms of reference
VIII.
Article 8 back to top
A. Text of
Article 8
B. Interpretation and Application
of Article 8
1. Article 8.4 — selection of
panelists
(a) Indicative list of governmental and non-governmental panelists
IX.
Article 9 back to top
A. Text of
Article 9
B. Interpretation and Application
of Article 9
1. Article 9.3
X.
Article 10 back to top
A. Text of
Article 10
B. Interpretation and Application
of Article 10
1. Article 10.1
(a) “Third
parties shall receive the submissions of the parties to the dispute to
the first meeting of the panel”
2. Article 10.2
(a) Enhanced
third-party rights
(b) “Substantial
interest”
3. Third-party
rights under Article 22.6 of the DSU
4. Authority of
the panel to direct a Member to be a third party
5. Essential
parties
XI.
Article 11 back to top
A. Text of
Article 11
B. Interpretation and Application
of Article 11
1. “objective
assessment of the matter before it, including an objective assessment of
the facts”
(a) “objective
assessment of the matter before it”
(i) “the
matter before it”
(ii) Consideration
of parties’ arguments by the Panel
(iii) Due
process implications
(iv) Consultation
of experts
(b) “objective
assessment of the facts”
(i) Egregious
error calling into question the good faith of a panel
2. Admission of
evidence
(a) Duty to
examine all evidence
(b) Deadlines
for the submission of evidence
(c) Evidence
obtained during consultations
3. “make
such other findings”
4. Burden of
proof
(a) Purpose of
allocating the burden of proof
(b) General
(c) Burden of
proof in GATT 1994
(d) Burden of
proof in the SPS Agreement
(e) Burden of
proof in the SCM Agreement
(f) Burden of
proof in the TRIPS Agreement
(g) Burden of
proof in the TBT Agreement
(h) Burden of
proof in the Agreement on Agriculture
(i) Burden of
proof in Article 21.3(c) arbitrations
(j) Burden of
proof in Article 21.5 compliance Panel proceedings
(k) Burden of
proof in Article 22.6 arbitrations
(l) Necessary
collaboration of the parties
(m) Source of
evidence for a prima facie case
(n) No need to
state explicitly that a prima facie case has been made
(o) Relevance
of the difficulty of collecting information to prove a case
(p) Relationship
between the burden of proof and a panel’s fact-finding mandate
(q) Relevance
of the mandatory/discretionary distinction
5. Standard of
review
(a) Standard
of review under the DSU
(b) Standard
of review in trade remedy cases
(i) Safeguard
measures
(ii) Anti-dumping
measures
(iii) Countervailing
measures
6. Judicial
economy
(a) Legal
basis for the exercise of judicial economy
(b) Exercise
of judicial economy with respect to arguments
(c) No
obligation to exercise judicial economy
(d) Requirement
to exercise judicial economy explicitly
(e) “False”
judicial economy
7. Adverse
inference
8. Relationship
with other Articles
(a) Articles
12 and 13 of the DSU
(b) Article 19
of the DSU
9. Relationship
with non-WTO law
(a) Non-WTO
law
XII.
Article 12 back to top
A. Text of
Article 12
B. Interpretation and Application
of Article 12
1. Article 12.1
(a) “Panels
shall follow the Working Procedures in Appendix 3 unless the panel
decides otherwise after consulting the parties to the dispute.”
2. Article 12.2
3. Article 12.6
(a) “submissions”
4. Article 12.7
(a) “basic
rationale behind any findings and recommendations”
(b) Order of
analysis
(i) Provisions
of different WTO Agreements
(ii) Provisions
within the same Agreement
5. Access to
the dispute settlement process by non-Members
XIII.
Article 13 back to top
A. Text of
Article 13
B. Interpretation and Application
of Article 13
1. Article 13.1
(a) “right
to seek information and technical advice from any individual or
body”
(b) Right to
disregard information submitted
(c) “A
Member should respond promptly and fully to any request by a panel for
such information as the panel considers necessary and appropriate”
2. Article 13.2
(a) “seek
information from any relevant source”
3. Adverse
inference from a refusal to provide information
XIV.
Article 14 back to top
A. Text of
Article 14
B. Interpretation and Application
of Article 14
XV.
Article 15 back to top
A. Text of
Article 15
B. Interpretation and Application
of Article 15
XVI.
Article 16 back to top
A. Text of
Article 16
B. Interpretation and Application
of Article 16
XVII.
Article 17 back to top
A. Text of
Article 17
B. Interpretation and Application
of Article 17
1. General
2. Article 17.1
(a) Establishment
of the Appellate Body
3. Article 17.2
(a) Appointment
of Members of the Appellate Body
4. Article
17.6: Scope of Appellate review
(a) “issues
of law … and legal interpretations”
(i) Factual
findings versus legal findings
(ii) Panel
as the trier of the facts
(iii) Characterization
of a finding by the Panel
(iv) Statements
of panels not amounting to “legal findings”
(v) Review of
new arguments
(b) “Completing
the analysis”
5. Article
17.9: Working procedures of the Appellate Body
(a) “Working
procedures shall be drawn up by the Appellate Body”
(i) General
(ii) Appellate
Body’s authority to adopt procedural rules
(iii) Amendment
of working procedures
(b) Interpretation
of the Working Procedures
(c) Rule
16(1): Amicus curiae briefs
(d) Rule
20(2): Notice of appeal
(i) Rule
20(2)(d): “brief statement of the nature of appeal, including the
allegations of error”
(e) Rule 30(1)
: Withdrawal of appeal
(i) Nature of the right to withdraw an appeal
(ii) Conditional withdrawal of an appeal
XVIII.
Article 18 back to top
A. Text of
Article 18
B. Interpretation and Application
of Article 18
1. Article 18.2
(a) Business
confidential information (BCI)
(b) Private
counsel
XIX.
Article 19 back to top
A. Text of
Article 19
B. Interpretation and Application
of Article 19
1. Article 19.1
(a) “bring
the measure into conformity with that agreement”
(i) Measures
no longer in existence
(ii) Relevance
of events that occurred during the proceedings
(b) “the
panel … may suggest ways in which the Member concerned could implement
the recommendation”
(i) Panel’s
discretion to suggest ways to implement
(ii) Choice
of means of implementation
(iii) Surveillance
of implementation
2. Article 19.2
3. Relationship
with other Articles
(a) Article 11
of the DSU
XX.
Article 20 back to top
A. Text of
Article 20
B. Interpretation and Application
of Article 20
XXI.
Article 21 back to top
A. Text of
Article 21
B. Interpretation and Application
of Article 21
1. Article 21.1
(a) “prompt compliance”
(i) Concept of compliance
(ii) Promptness of compliance
2. Article 21.2
(a) “interests of developing country Members”
3. Article 21.3(c)
(a) Mandate of the arbitrator
(b) “reasonable period of time”
(i) Concept of
“reasonableness”
(ii) Length of the reasonable period of time
(iii) The
application of
WTO-inconsistent measures
during the reasonable period of time
(iv) Exception: prohibited subsidies
(c) “particular circumstances”
(i) Concept of
“particular
circumstances”
(ii) Relevance of
“particular
circumstances”
(iii) Factors amounting to
“particular
circumstances”
(iv) Factors not qualifying as
“particular
circumstances”
(v) Burden of proof
(d) Relationship with Article 22 of the DSU
(e) Participation by all the original parties
(f) Relationship with other Agreements
(i) SCM Agreement
4. Article 21.5
(a) “measures taken to comply”
(i) Measures concerned by Article 21.5 panel
proceedings
(ii) Extent of the examination by the panel
(b) Burden of proof
5. Relationship with other Articles of the DSU
(a) Bilateral agreements: Articles 21 and 22
(i) The sequencing issue
(ii) Examples of ad hoc procedural agreements
(iii) Panel’s scope of review of procedural
agreements
(b) Article 6.2 of the DSU
XXII.
Article 22 back to top
A. Text of
Article 22
B. Interpretation and Application
of Article 22
1. General
(a) Nature of countermeasures
(b) Bilateral procedural agreements
(c) Confidential information
2. Article 22.1
3. Article 22.2
(a) Specificity in the request for suspension of
concessions or other obligations
(i) Application of Article 6.2 specificity
requirement
(ii) Minimum specificity requirements
4. Article 22.3
(a) Scope of review by arbitrators under Article
22.3
(b) “the complaining party shall apply the
following principles and procedures”
5. Article 22.3(a)
(a) “general principle … complaining party
should first seek to suspend concessions or other obligations with
respect to the same sector(s)”
(i) General
(ii) Parallelism between violations and requests
for suspension of concessions
(b) Scope of review of Arbitrators
6. Article 22.3(b) and (c)
(a) “if that party considers that it is not
practical or effective”
(b) Relationship between paragraphs (a) and (c) of
Article 22.3
7. Article 22.4
(a) “The level of the suspension of
concessions or other obligations …shall be equivalent to the level of
the nullification or impairment”
(b) Examples of level of suspension of concessions
8. Article 22.6
(a) Specificity in the request for a referral to
arbitration under Article 22.6
(b) Scope of review of arbitrators
(c) Burden of proof
(d) Third-party rights
9. Article 22.7
(a) Scope of review of arbitrators
(b) “The arbitrator…shall determine whether
the level of such suspension is equivalent to the level of nullification
or impairment.”
(i) Standard of equivalence
(ii) Assessment of
“equivalence”
(iii) Exception: Standard of appropriateness in
subsidy arbitrations
(c) Assessment of the level of nullification
(i) Indirect benefits
(ii) Double-counting of nullification or
impairment
(iii) Company-specific effects versus overall
effect on the Member
(iv) Exception: Arbitrations pursuant to Article
4.10 of the SCM Agreement
(d) Assessment of the level of suspension of
concessions
(e) Methodology paper
(f) Product coverage
(i) List of products
(ii) “Carousel” type suspension
10. Relationship with other Agreements
(a) Arbitrations pursuant to Articles 4.10 and
4.11 of the SCM Agreement
(i) Special or additional rules
(ii) Exception to the
“equivalence”
standard of Articles 22.4 and 22.7 of the DSU
(iii) Concept of
“appropriate
countermeasures”
(iv) Exception to the requirement of equivalence
to the level of nullification or impairment
(v) Arbitrators’ mandate pursuant to Article 4.11
XXIII.
Article 23 back to top
A. Text of
Article 23
B. Interpretation and Application
of Article 23
1. General
2. Article 23.1
(a) “seeking the redress of a WTO
violation”
(b) “recourse to, and abide by”
3. Article 23.2(c)
4. Relationship with other Agreements
(a) SCM Agreement
XXIV.
Article 24 back to top
A. Text of
Article 24
B. Interpretation and Application
of Article 24
XXV.
Article 25 back to top
A. Text of
Article 25
B. Interpretation and Application
of Article 25
1. General
(a) Scope of the
Arbitrators’ mandate under
Article 25
(b) Jurisdiction of the Arbitrators under Article
25
(c) Burden of proof in Article 25 arbitrations
(d) Matters dealt under Article 25 arbitrations
(i) Nullification or impairment of benefits
(e) Right to seek and disregard information
(f) Treatment of confidential information
2. Article 25.1
(a) “expeditious arbitration … as an
alternative means of dispute settlement”
(b) Differences compared with panel proceedings
3. Article 25.2
(a) Arbitration under Article 25 should only be
excluded when expressly provided
4. Article 25.4
(a) General
(b) “Articles 21 and 22
…. shall apply
mutatis mutandis”
5. Relationship with other Articles of the DSU
(a) Article 3.3
(b) Article 21
(c) Article 22.2
(d) Article 22.6
XXVI.
Article 26 back to top
A. Text of
Article 26
B. Interpretation and Application
of Article 26
1. Article 26.1
(a) “detailed justification in support of any
complaint”
2. Jurisprudence under Article XXIII:1(b)
C. Relationship with other WTO Agreements
1. Article XXIII:1(a) of the GATT 1994
2. Article XXIII:1(b) of the GATT 1994
XXVII.
Article 27 back to top
A. Text of
Article 27
B. Interpretation and Application
of Article 27
XXVIII.
Appendix 1: Agreements covered by the DSU back to top
A. Text of
Appendix 1
B. Interpretation and Application
of Appendix 1
XXIX.
Appendix 2: Special or Additional Dispute Settlement Rules and Procedures
back to top
A. Text of
Appendix 2
B. Interpretation and Application
of Appendix 2
XXX.
Appendix 3: Panel Working Procedures
back to top
A. Text of
Appendix 3
B. Interpretation and Application
of Appendix 3
1. Margin of
discretion
2. Submission of
new evidence or allegation
3. Deadline for
affirmative defence
4. Objections to
panels’ jurisdiction
5. Additional
procedures
(a) Composition of
parties’ delegations
(b) Business
Confidential Information
XXXI.
Appendix 4: Expert Review Groups back to top
A. Text of
Appendix 4
B. Interpretation and Application
of Appendix 4
XXXII.
Working Procedures for Appellate Review back to top
A. Text of
Working Procedures
B. Interpretation and Application
of the Appellate Body Working Procedures
XXXIII.
Other Issues in WTO Dispute Proceedings back to top
A. Due process in WTO Dispute Settlement Proceedings
1. Standard panel working procedures as a tool to
ensure due process
2. Identification of measures and claims at issue
3. Identification of appealed measures
4. Right of response
B. Preliminary Rulings
1. General
(a) Instances where a Panel must address
jurisdictional issues
(b) Lack of regulation in standard working
procedures
(c) Absence of requirement to rule
2. Parties’ objections
3. Issues subject to preliminary rulings
(a) Adequacy of consultations
(b) Panel request
(i) Clarity of the panel request
(ii) Specificity of the panel request
(c) Panel’s terms of reference
(d) Late submission of new evidence
(e) Confidentiality
(i) Breach of confidentiality of the consultation
process
(ii) Business confidential information
(iii) Confidentiality concerns when private
counsels intervene
(f) Private counsel
(g) Amicus Curiae
4. Timing
(a) Promptness of objections
(b) Timing of the preliminary ruling
C. Private Counsel
1. Presence of private counsels in oral hearings
2. Confidentiality concerns
D. Judicial Economy
E. Amicus Curiae Briefs
1. Authority to admit amicus curiae briefs
2. Admission/rejection of amicus curiae briefs
F. Domestic Law
|
